Opinion
Civil Action 21-1622
01-23-2023
EUGENE P. PATTERSON, Plaintiff, v. PNC BANK, Defendant.
Cathy Bissoon, District Judge
REPORT AND RECOMMENDATION
Re: ECF No. 24
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiff Eugene P. Patterson (“Plaintiff'), an inmate incarcerated at the Tucson Federal Correctional Facility, brings this action pro se against PNC Bank (“PNC”). Plaintiffs claims arise out of allegations that PNC failed to provide information about the status of his bank accounts. ECF No. 14.
II. REPORT
A. FACTUAL AND PROCEDURAL HISTORY
1. Plaintiffs Complaint
Plaintiff initiated this action on November 9, 2021 by filing a Complaint without moving for leave to proceed in forma pauperis or paying the filing fee. ECF No. 1. Plaintiff later submitted the filing fee, and his Complaint was filed on May 10, 2022. ECF Nos. 13 and 14.
In his Complaint, Plaintiff claims that PNC refused to provide him with information about the status of his PNC savings and checking accounts. Plaintiff attaches a copy of a letter from Kim Carolan (“Carolan”) of PNC dated July 17, 2019, in which Carolan informed Plaintiff that PNC could provide the status of his accounts if he sent a letter with his signature acknowledged by a notary public. ECF No. 14-7 at 7. Carolan also stated that PNC had confirmed with the prison that inmates have access to a notary public, and she instructed Plaintiff on how to send the necessary forms. Id.
Plaintiff claims that he sent various letters to PNC, but PNC refused to accept the notary public seal of Thomas Walter Ashworth (“Ashworth”) or provide Plaintiff with the status of his bank accounts. ECF No. 14 at 1-3. As a result, he could not elect the direct deposit option to receive his veterans' benefits and suffered emotional distress. Id.; ECF No. 14-4 at 2.
Plaintiff could still receive his benefits without using direct deposit. He attaches a letter from the Department of Veterans Affairs which states that direct deposit is an option, but that benefits can be provided by check or debit card. ECF No. 14-4 at 2.
Based on these allegations, Plaintiff vaguely claims that PNC violated “Federal Statutes, Regulations, and Federal Court Rules,” and the laws of “banks,” “consumer protection,” “constitutional rights” and “discovery laws.” ECF No. 14 at 8-9.
As relief, Plaintiff requests that PNC be required to accept Ashworth's notary public seal and to provide the status of his checking and savings accounts. He also requests a declaratory judgment stating that Ashworth's notary public seal is authorized and authentic, and he seeks $100,000 in compensatory and punitive damages. Id. at 9.
2. Motion to Dismiss
a. PNC's Motion
PNC filed this Motion to Dismiss and Brief in Support on August 5, 2022. ECF Nos. 24 and 25. In support of the Motion to Dismiss, PNC argues that Plaintiff does not plead any cognizable cause of action relative to his request for account information. ECF No. 25 at 1. Despite styling this as a “civil rights action” and claiming violations of his constitutional rights, PNC argues, the United States Constitution does not provide Plaintiff with a right to the status of his bank accounts, and he does not allege facts showing discrimination. Id. at 4. PNC also argues that Plaintiff s request is moot because it has since informed him of the status of his accounts. Id. at 4-5; ECF No. 25-1 at 2. Finally, PNC argues that Plaintiff does not have any right to damages for emotional distress. ECF No. 25 at 6.
b. Plaintiffs Failure to Respond
The Court ordered Plaintiff to respond to the Motion to Dismiss by August 29,2022. ECF No. 26. At Plaintiffs request, the Court extended the time to respond until October 14, 2022. ECF Nos. 33 and 34. Plaintiff then requested another extension of time to respond. ECF No. 35. The Court extended Plaintiffs response deadline again until November 28, 2022, indicating that no further extensions of time would be granted. ECF No. 36. As of this date, Plaintiff has not filed a response to the Motion to Dismiss.
The Court issued an Order to Show Cause, directing Plaintiff to show good cause by December 27, 2022 why PNC's Motion to Dismiss should not be granted based on Plaintiffs failure to respond thereto. ECF No. 37. To date, Plaintiff has not responded to the Motion to Dismiss or Order to Show Cause.
On January 4, 2023, Plaintiff filed a notice with the Court claiming that he sent ‘“Show Cause Response' papers and exhibits” to the Court and asked the Court to consider mail delays caused by the Christmas holiday. ECF No. 40. However, the Court still has not received any response to the Order to Show Cause or Motion to Dismiss.
Given Plaintiffs failure to timely respond, the Motion to Dismiss is now ripe for consideration.
B. LEGAL STANDARD
In assessing the sufficiency of a complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The Court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See Cal. Pub. Employees' Retirement Sys, v. The Chubb Corp., 394 F.3d 126,143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions set forth as factual allegations. Bell Atlantic Corp, v. Twombly, 550 U.S. 544, 555 (2007). Rather, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Indeed, the United States Supreme Court has held that a complaint is properly dismissed under Fed.R.Civ.P. 12(b)(6) where it does not allege “enough facts to state a claim to relief that is plausible on its face,” id. at 570, or where the factual content does not allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, “labels, conclusions, and a formulaic recitation of the elements of a cause of action” do not suffice but, rather, the complaint “must allege facts suggestive of [the proscribed] conduct” and that are sufficient “to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s] of his claim”). .
Pro se pleadings and filings, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or the litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); U.S, ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (A “petition prepared by a prisoner ... may be inartfully drawn and should ... be read ‘with a measure of tolerance'”); Freeman v. Dept, of Corr., 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997) (overruled on other grounds}, see also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same).
However, there are limits to the court's procedural flexibility: “pro se litigants still must allege sufficient facts in their complaints to support a claim ... they cannot flout procedural rules - they must abide by the same rules that apply to all other litigants.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citations omitted). Accordingly, because Plaintiff is a Pro se litigant, this Court will consider the facts and make inferences where it is appropriate.
C. DISCUSSION
Upon review, the Court should grant this unopposed Motion to Dismiss. Plaintiff fails to state a claim upon which relief can be granted. Plaintiff broadly claims that PNC violated various categories of law (e.g., “federal statutes, regulations, and federal court rules”), without asserting any specific claims.
Plaintiff refers to several federal statutes and regulations in the body of his Complaint, however, none appear to be relevant to any potential cause of action. ECF No. 14 at 5. For example, he cites to definitions of various types of banking institutions under the Uniform Commercial Code. He also refers to a provision of the Glass-Steagall Act, 12 U.S.C. A. § 378, which makes it unlawful for persons engaged in various phases of the securities business “to engage at the same time to any extent whatever in the business of receiving deposits,” and only provides for criminal penalties. Plaintiff also refers to the Securities Exchange Act of 1934, which primarily regulates the transactions of securities and does not appear to provide for any applicable private cause of action.
Even construing Plaintiffs Pro se Complaint liberally, the Court cannot discern any cognizable claim. To the extent that Plaintiff claims that PNC violated his “constitutional rights” and “discovery laws,” there is no plausible basis for relief. Because PNC was not acting under the color of state law, Plaintiff does not state any potential claim for violating his constitutional rights under 42 U.S.C. §1983. Further, discovery is a procedural tool for litigants-not a basis for liability. Because there is no other apparent source of Plaintiff s right to relief, his claims should be dismissed.
The Court notes that the Truth in Savings Act (“TISA”), 12 U.S.C. § 4301 et seq., and its counterpart Regulation DD, 12 C.F.R. § 1030.1, et seq. govern what banks must disclose to their customers and how they make those disclosures. However, there is no private cause of action of action under TISA. Alfaro v. Bank of Am,, No. 1922762, 2021 WL 1149889, at *2 (S.D. Fla. Feb. 23, 2021).
“If a complaint is vulnerable to Rule 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008). In this case, leave to amend should not be granted. Plaintiff does not oppose the Motion to Dismiss; he does not appear to assert any viable claim that is subject to this Court's jurisdiction; and PNC has since provided information to Plaintiff regarding the status of his accounts. Accordingly, the Motion to Dismiss should be granted without leave to amend.
Plaintiff does not allege that PNC violated the terms of any agreement by failing to give him information about the status of his accounts. Even if he could raise a breach of contract claim, however, it does not appear the Court would have any basis for exercising jurisdiction. This claim arises under state law, and the amount in controversy would not exceed the jurisdictional limit for diversity jurisdiction.
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Court grant PNC's Motion to Dismiss, ECF No. 24, with prejudice.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.
cc: The Honorable Cathy Bissoon, United States District Judge.